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ANALYSIS OF APRIL 7, 2009 CAV OPINIONS

[Posted April 7, 2009] As I noted last week, I have fallen behind in posting analysis of the Court of Appeals’ recent published opinions. The court hands down three more today. Let’s take care of the newest ones first, and then look at the slightly dustier ones.

Domestic relations
Consent decrees often look a lot like contracts. They share one primary characteristic in that they are negotiated agreements as to their subject matters, and in interpreting this type of order, the courts often consider them just as though they were contracts. That analysis is at the heart of today’s ruling in Brown v. Brown.

The Browns got unhitched in 2004 after a long marriage. Because the trial court backdated the start of the spousal support obligation, the husband started out in arrears. It didn’t take long (just 33 days after the divorce) for the wife to file a show cause petition to address the deficiency. Before the matter could be heard, the parties admirably settled the dispute by setting forth a repayment schedule, which was incorporated into a consent decree.

Three years later, the husband sought to retire, and moved the court to modify the amount of monthly support. But wife’s attorney had a surprise – he contended that the consent decree had contractually settled all support disputes between the parties, and pursuant to statute, that decree could no longer be modified.

The juvenile and circuit courts agreed and dismissed the motion, but today the Court of Appeals reverses and remands the case. It holds that while the consent decree did finally resolve a matter in dispute between the parties, that dispute wasn’t over the amount of support to be paid; it was how to address the sudden arrearage.

Accordingly, while the parties may have finally settled the question of how and by when the husband would catch up with the original shortfall, the original divorce decree still controlled the issue of how much support was to be paid. And since that original decree can statutorily be modified, the case is remanded so the trial court can consider the husband’s request.

Criminal law
Prosecutions for felony child neglect are always touchy subjects because of who the victim is. Young children are vulnerable, and when their caretakers fail to pay sufficient attention to their needs, disastrous consequences often follow. From today’s ruling in Shanklin v. Commonwealth, we don’t know whether the ultimate consequences were disastrous or merely regrettable. But a temporary caretaker ended up fighting a felony conviction over it.

The child in this case is a four-year-old boy who suffered second-degree burn injuries to his hands and foot. The opinion explains that these injuries occurred while the boy was in the care of a custodian and her boyfriend. The two employed an unorthodox type of medical care, treating the burns with ointment, then wrapping the hands and foot in gauze and securing the gauze with that universal fix-all, duct tape.

The next day, the two brought the boy to the home of the boyfriend’s mother at 4 pm, leaving him with the mother for several hours, perhaps while they caught a double feature. They explained to the mother that the boy had burned himself the previous day in hot water. The mother noticed that the boy was lethargic (he took a four-hour nap as soon as he got there) and had to be jostled awake to eat a bite of dinner. She also had to carry him to the bathroom. At 11 pm, the original caretaker and her boyfriend returned and claimed the boy; the mother didn’t inquire about the injuries.

Believe it or not, the defendant at trial, and the appellant in this appeal, is the mother. The Commonwealth prosecuted her for failing to recognize that the boy needed medical attention. The prosecution pointed to the fact that duct tape, instead of something more suitable (or at least more customarily used), was used should have been a clue to the mother to do something for the child.

Perhaps the mother was negligent, the Court of Appeals rules today; but not criminally so. This crime is a felony, and while the mother might well have been better advised to take the boy to a clinic to look after his injuries, it isn’t a felony to wait a few hours for the return of the primary caretaker. The use of duct tape evidently did not further injure the boy, and indeed there is no mention in today’s opinion that the boy suffered any long-term injuries. The court accordingly finds that the evidence was insufficient to convict, so it reverses and dismisses the indictment.

Workers’ compensation
Both appellate litigants walk away from today’s decision in NiSource, Inc. v. Thomas grumbling. They say that situation makes for good settlements; we can only speculate as to what it means for appellate decisions.

Thomas sustained significant injuries on the job while working for NiSource as an inspector. His doctors told him that he was in effect totally disabled.Instead of sitting at home watching soap operas and eating bonbons, he bought an ongoing retail business. He put all the stock into his wife’s name, and he spent a number of hours most weeks at the store. Many of those hours were spent in the kind of pursuits you would associate with retail – greeting customers; paying bills; managing the books; and the like. Other hour were spent playing solitaire, napping in the back room, or otherwise idling, as a business owner is allowed to do if he wants.

NiSource found out about the business, and contended that Thomas was effectively employed. It asked the Comp Commission to impute income to him, to offset the amount of compensation it was required to pay. Thomas answered that he wasn’t drawing a paycheck, and that his assistance around the shop didn’t amount to his being employed. Besides, he had a doctor’s note, telling him that we was fully disabled – what more did he need beyond that?

The Commission affirmed a deputy’s finding that a modest amount of income (about a third of what the employer had sought) should be imputed to Thomas. That made no one happy, so we’re off to the Court of Appeals.

There are a number of rulings in today’s opinion. The court affirms the Commission in all respects, finding that the fact that Thomas had a medical determination of disability had to yield to the fact that, as the Commission permissibly found, he was actually working. It also found sufficient factual support for the Commission’s decision to impute a limited amount of income to Thomas. In doing that, it considered the amount of income the business brought in (after considering and ominously accepting an expert’s conclusion that the income of the business was considerably understated) and allocated part of that to Thomas.

Experienced workers’ comp practitioners will raise their eyebrows at this approach. In the past, the court has refused to equate business income with employment income. Ah, the court notes today; that case (Smith v. Robert W. Smith, back in 2000) involved a passive investor. Here, Thomas was unquestionably doing things that constituted employment.

Finally, the court refuses to touch the Commission’s decision not to impose costs and fees against the employer. Appellate practitioners know the game is over when the court’s analysis of this issue begins, as this one does, “Citing no authority for his position, claimant argues . . .”That means the claim is going down. Indeed, two other arguments die similarly ignoble deaths today, as the court finds them to be waived because Thomas didn’t present any argument on them.